| Welcome and updateHector MacQueen 18 February 2009 12:00 Welcome to the European Private Law News blog of the Edinburgh Law School. We aim to report and comment on developments in European Private Law, having in mind mainly an audience of lawyers in Scotland; but we hope also to convey word of relevant developments in Scotland to those elsewhere. Read more...Comments (0) |
| Sellier, the publishers of the DCFR, have sent us the announcement below. Read more...Comments (0) |
| Book Launch - The Unauthorised AgentLaura Macgregor 20 February 2009 15:29 On 10 January 2009 a conference was held at the offices of De Brauw Blackstone Westbroek, Amsterdam, to mark the publication of a book on agency law in Europe. Its title is The Unauthorised Agent: Perspectives from European and Comparative Law, published by Cambridge University Press. Read more... |
| Privity of contract in the DCFREric Clive 20 February 2009 15:56
Is the lack of a general privity of contract provision in the DCFR a “startling omission”? Simon Whittaker thinks so. Read more...Comments (0) |
| DCFR nouveauHector MacQueen 23 February 2009 22:19 Il est arrivee ... Read more...Comments (0) |
| European Contract Law - LiteratureLaura Macgregor 25 February 2009 13:48 Recent years have seen the emergence of textbooks devoted to Contract Law within Europe. This term would encompass existing EU contract legislation, the DCFR, and also national systems of contract law within Europe. The publication of these texts underlines the fact that the subject is now seen as a discipline in its own right. Read more...Comments (0) |
| The Scottish Law Commission is consulting stakeholders on whether in its forthcoming Eighth Programme of Law Reform it should consider the possibility of a draft contract code based on the Draft Common Frame of Reference (DCFR). Read more...Comments (0) |
| The revised and expanded Outline Edition of the Draft Common Frame of Reference (DCFR) is now published and available in book form. See Hector's entry for 20 February for more details. Read more...Comments (0) |
| Last night I attended the Edinburgh launch of Laura Macgregor’s and Danny Busch’s book on The Unauthorised Agent: Perspectives from European and Comparative Law. It was a successful and joyous occasion. Good to see such a mix of judges, practitioners, law teachers and students. Good to see Harvey McGregor, active member of the Gandolfi group and author of by far the best English translation of its Draft European Code of Contract. Read more... |
| A report prepared for the Civil Division of the Scottish Government on the DCFR has now been published on the Scottish Government website. The author is one of the bloggers to this site, and the nature of the advice which she was asked to provide was "...a critical assessment, from the perspective of Scots law, of the content and role of the (now published) first draft of the ‘academic CFR’" Read more... |
| Compensable or compensatable?Eric Clive 10 March 2009 14:47 Editing is a dull job but occasionally the relentless chipping produces a tiny spark of interest. The spark last week was the question whether the national notes in the full version of the Principles, Definitions and Model Rules of European Private Law (the DCFR) should use “compensable” or “compensatable” to describe a type of harm or condition for which compensation could be obtained. Read more...Comments (0) |
| This morning, the LLM Class (Contract Law in Europe) were discussing the enforcement of performance both under the DCFR and under various national legal systems. One point emerged from the discussions, which perhaps Professor Clive can clarify for us. Read more...Comments (0) |
| In Laura's last blog she asks about Article III.-3:302(3)(b) of the DCFR. That Article deals with the right to enforce performance of a non-monetary obligation and the specific sub-paragraph contains an exception for the case where "performance would be unreasonably burdensome or expensive". The question is whether that involves any sort of proportionality test - comparing the burden on the debtor in the obligation with the benefit to the creditor. Read more... |
| I have just seen an advert for a new book edited by Hans Micklitz and Fabrizio Cafaggi on “After the Common Frame of Reference”. The blurb refers to the DCFR as “very much a backwards looking 19th century codification project”. Read more... |
| On 25th March, Sub-Committee E of the House of Lords’ European Union Committee (Chairman, Lord Mance) will be taking oral evidence on the Common Frame of Reference (CFR) from Jonathan Faull, Director General, Justice, Freedom and Security at the EU Commission. I hope that the Sub-Committee will take the opportunity to ask how the Commission sees the relationship between the CFR and the new proposal for a Consumer Rights Directive. Read more... |
| Jonathan Faull, Director-General, Justice, Freedom and Security, European Commission gave evidence by video link to Sub-Committee E of the House of Lords’ EU Committee this afternoon. These are some of the key points (not necessarily in the order in which they were made) from the first part of his evidence - before technical problems cut off my link. Read more...Comments (0) |
| DCFR's farewell to Windscheid?Hector MacQueen 09 April 2009 08:37 "Farewell to Windscheid? Legal Concepts Present and Absent from the Draft CFR" is the title of a new article on the DCFR by Antoni Vaquer of the University of Lleida in Catalonia. Read more...Comments (0) |
| DCFR on i-phoneEric Clive 21 April 2009 10:34 Not being a gadget freak, this is not something I will be using myself, but I am informed that you can download the "Principles, Definitions and Model Rules of European Private Law - DCFR" to your i-phone as an e-book application - and for free in the next few weeks. The link is <http://itunes.apple.com/WebObjects/MZStore.woa/wa/viewSoftware?id=312380786
&mt=8>. Read more...Comments (0) |
| Actually, it already has been conjured with - and the person behind it has conjured up an excellent article on "Should Scots Property Law Be Codified?" which appears in the first issue of the Edinburgh Student Law Review vol 1 (2009) at pp 1 - 18. See http://www.law.ed.ac.uk/eslr/files/eslr.pdf. Read more...Comments (0) |
| The uncorrected minutes of evidence on the Draft Common Frame of Reference taken before Sub-Committee E of the House of Lords’ EU Committee on 25 March 2009 are available at http://www.publications.parliament.uk/pa/ld/lduncorr/eue250309ev3.pdf. Read more...Comments (0) |
| Last February Eric Clive noted a meeting in Amsterdam to discuss the formation of a European Legal Research Association; the follow-up meeting mentioned there took place in sunny Prague on 1-2 May 2009. Read more...Comments (0) |
| In preparing a new edition of my introductory text on unjustified enrichment and trying to make use of the DCFR for definitions and filling gaps in our law (as with PECL in MacQueen & Thomson on Contract and McBryde on Contract), I came across a problem that may be a gap in the DCFR and certainly shows the need for continuing work on the text. Read more...Comments (0) |
| On 12 May Lord Hoffmann gave a brilliant talk in the Law School on the case of the Achilleas (Transfield Shipping Co Inc v Mercator Shipping Inc [2008] UKHL 48). In that case the House of Lords recast the English law on damages for breach of contract. The purpose of this note is to ask how such a case might have been decided under the model rules of European private law in the Draft Common Frame of Reference (the DCFR). Read more...Comments (0) |
| In a previous post we noted an apparent conflict building up between the European Commission and the UK Law Commissions over the buyer's right to reject faulty goods supplied under a contract of sale. Read more...Comments (0) |
| The House of Lords European Union Committee published a largely critical report on the DCFR on 10 June 2009. Read more...Comments (0) |
| In the previous post I promised some comment on the substantive "issues" the House of Lords Committee's Report of June 2009 said it had with the DCFR. As suggested in that post, some of these appear to address the 2008 interim version rather than the final 2009 one. As a result, the Report is seriously mistaken on some key points. Read more...Comments (0) |
| Today is the last day for submissions to the Scottish Law Commission relating to their Eighth Programme of Law Reform. Submissions can be uploaded online here: http://www.scotlawcom.gov.uk/html/eighth_programme.php. Here you will find details of the issues carried over from the Seventh programme. You will also find a note of the projects which have been suggested to the SLC, and you will be able to comment on these. Readers of this blog may be interested in the comment below which I posted today (although the posts do not appear immediately on the site). Readers of this blog are urged to make their own posting - I'm sure those at the Commission would be grateful for a flurry of last minute posts! : Read more...Comments (0) |
| Two mighty tomes dropped onto the European Private Law News desk over the summer, and seem worth drawing to readers' attention. Read more...Comments (0) |
| The action moves to ScandinaviaEric Clive 24 September 2009 14:25 There is to be a conference at Aarhus on the Unification and Harmonization of International Commercial Law on 19th and 20th Cctober 2009. See http://www.asb.dk/article.aspx?pid=21229. The questions suggested for discussion by the speakers include the preferred methods of harmonisation or unification and whether there might be unintended consequences of some of the efforts currently underway – such as conflicts between different instruments or methods. Read more... |
| The Acquis Group welcomes the objective of the the EU Commission’s proposal for a Directive on consumer rights (the so-called horizontal Directive) – a significant and much-needed move towards a more coherent European private law – but is highly critical of the actual content and drafting. Read more...Comments (0) |
| DCFR publishedHector MacQueen 16 October 2009 10:13 The six volumes of the DCFR have been published on 16 October 2009 by Sellier, a week ahead of schedule, and also before the inter-governmental conference on the subject to be held in Stockholm 22-23 October. Read more...Comments (0) |
| The conference organised by the Swedish Presidency of the EU in Stockholm from 22nd to 23rd October was a great success. The main point was “to discuss the future of the common frame of reference focussing on the political way forward”. The conference was well-attended (Ministries of Justice from throughout the EU being particularly well-represented) and extremely well organised. The important message to emerge is that work on a “political” common frame of reference (CFR) will go ahead. Read more...Comments (0) |
| Towards a European Law InstituteEric Clive 04 November 2009 10:42 At a meeting held at the rather impressive Stockholm Centre for Commercial Law on 23 and 24 October further progress was made towards the formation of an unofficial pan-European body of law faculties, research centres, individual legal scholars and others with an interest in research into, and the development of, European public and private law. Read more...Comments (0) |
| In previous posts we noted how the English and Scottish Law Commissions were critical of European Commission proposals to confine consumers' remedies to those of repair and/or replacement in a new Consumer Rights Directive, and not to allow Member States to go further, thus entailing the loss of the consumer buyer's right to reject unsatisfactory goods in the United Kingdom. Read more...Comments (0) |
| At the Stockholm conference on the Common Frame of Reference for European Contract Law (the CFR) there were contributions from representatives of the Swedish, French, Czech and Spanish Ministries of Justice, from the European Commission and from the European Parliament. Together they give a good idea of official thinking on the CFR. Read more...Comments (0) |
| Klaus-Heiner Lehne, the Chair of the Committee of Legal Affairs and Chair of the Conference of Committee Chairs of the European Parliament is a vigorous and impressive politician. There is a recent profile of him at http://www.europeanvoice.com/article/imported/strategic-thinker/66336.aspx. And he gave a vigorous and impressive speech at the Stockholm conference on the CFR. Read more...Comments (0) |
| The first professor to express a view on the DCFR at the Stockholm conference was Jan Kleineman of the University of Stockholm, who was moderator of the first full session. He criticised the drafting of the model rules as being too difficult and complicated. Read more...Comments (0) |
| This was the title of an interesting contribution to the Stockholm conference by Paul Abbiatti, Legal Consultant, Member of the International Chamber of Commerce. His answer in two words was “Maybe yes”. Read more...Comments (2) |
| The first step is for the UK and the tiny number of other EU countries which have not yet ratified the Convention on Contracts for the International Sale of Goods (CISG) to ratify it. This was the frank and sensible advice of Professor Johnny Herre, Stockholm School of Economics, in his talk to the Stockholm conference. Read more...Comments (0) |
| What is the relationship between a European Common Frame of Reference and other global or European private law instruments? We have CISG, PICC, PECL, ACQP and now DCFR and, eventually, CFR. Is it all getting excessive? Read more...Comments (0) |
| The DCFR and the CISGEric Clive 24 November 2009 13:21 In a clear, cogent and beautifully delivered speech to the Stockholm conference Professor Ingeborg Schwenzer of the University of Basel addressed the topic “Drafting new model rules on sales: CFR as an alternative to the CISG?” The speech was an impressive one which made many good points and provided much food for thought. Read more...Comments (0) |
| Professor Stefan Vogenauer of the University of Oxford spoke at the Stockholm conference on the theme “CFR and UNIDROIT principles of international commercial contracts: coexistence, competition or overkill of soft law?” The answer to the question across the whole range of contracts must surely be coexistence. The instruments are designed to serve different purposes. Professor Vogenauer’s view was, however, that for an optional instrument for commercial contracts there was no need for a CFR in addition to the Unidroit Principles. Read more...Comments (0) |
| What is the significance of the bank charges case (Office of Fair Trading v Abbey National plc [2009] UKSC 6) for European private law? There are several points and on all of them the decision is very welcome. Read more...Comments (2) |
| In a recent judgment the Swedish Supreme Court made express reference to the DCFR, thus being the first European supreme court to do so. The unanimous judgment was delivered on 3 November (case nr. T 3-08, 3 November 2009). Read more...Comments (0) |
| In a wide-ranging Resolution, dated 25 November 2009 (P7_TA-PROV(2009)0090), on the Stockholm programme the European Parliament called for action on many legal fronts, including private international law, succession law, criminal law and matrimonial property law. In relation to contract law, the Parliament strongly advocated the immediate use of the DCFR and the development of an optional instrument. Read more...Comments (0) |
| Rome I Regulation in forceEric Clive 17 December 2009 16:28 The Rome I Regulation comes into force today, 17 December 2009. It determines which law applies to contracts having connections with more than one country. It is of both direct and indirect significance for European private law. Read more...Comments (2) |
| At the hearings of commissioners designate before the European Parliament on 12 January, Mrs Viviane Reding, the Commissioner Designate for justice, fundamental rights and citizenship, gave a most impressive performance. Read more...Comments (0) |
| Lord Goldsmith’s evidence to the Chilcot Inquiry provides food for thought on the proper role of subsequent conduct in the interpretation process. As in the case of prior negotiations there is here a dividing line between United Kingdom law and general European private law and international commercial law. Read more...Comments (0) |
| Aberdeen meeting on DCFREric Clive 07 February 2010 19:46 The Scottish Association of Comparative Law and Aberdeen University Law School held a session on the DCFR in Aberdeen on Friday. The session was organised by David Carey-Miller and Leone Niglia and opened by Margaret Ross, the head of school. It was attended by participants from Aberdeen, Dundee, Edinburgh and Glasgow. Read more...Comments (1) |
| The Scottish Law Commission, after extensive consultation, has published its eighth programme of law reform. It is a full and interesting programme, including for example, a review of the law of homicide, the criminal liability of partnerships, compulsory purchase and heritable securities. The focus of this blog entry is only on those aspects of particular relevance to developments in European private law. They are significant. Read more...Comments (0) |
| The Edinburgh Centre for Private Law held a symposium on Friday on the model rules in the DCFR on the acquisition and loss of ownership of goods. There was a stimulating and intelligent discussion at the end of which the general impression was probably that Book VIII was a tremendous step forward for European private law but left some interesting questions to ponder. Read more...Comments (5) |
| Transfer of ownership of goodsEric Clive 23 February 2010 13:33 The talk by Lars van Vliet to the Edinburgh symposium on Book VIII of the DCFR last Friday (see preceding entry) raised some interesting questions about the requirements for a transfer of the ownership of goods. Read more...Comments (0) |
| Promotional prizesEric Clive 02 March 2010 22:42 A business sends a letter to a consumer undertaking to pay a prize if the consumer fills in and returns a claim form. The consumer does so. The prize is not paid and the consumer raises an action for payment. How should this situation be analysed for the purposes of European private law? Read more...Comments (0) |
| Terms applyEric Clive 03 March 2010 11:15 The best thing I have seen on television in the last week was a short commercial for discounted cinema tickets which said “Terms apply”. Five thousand Hallelujahs! Until now in such contexts I have seen only the ghastly, pleonastic “terms and conditions apply”. Now somebody, when space was tight, has seen the light. It is unnecessary to use both “terms” and “conditions”. Read more...Comments (0) |
| This was the title of an excellent presentation last night by Laura Macgregor, the Director of the Edinburgh Centre for Commercial Law to a joint meeting at Edinburgh University of the Scottish Lawyers European Group and the Europa Institute. She glanced into the past – to explain the background to, the nature and purpose of, and recent developments relating to, the DCFR – before glancing into the future. She thought the DCFR was likely to be highly influential in the ongoing reform of Scottish private law and as the basis for an official CFR which would function as a toolbox or dictionary for EU legislators. She noted that an opt-in instrument was still high on the agenda, and would be potentially useful, but thought that any talk of a European civil code was very premature and something of a red herring. Read more...Comments (0) |
| Last week the European Commission published a Communication called “EUROPE 2020: A strategy for smart, sustainable and inclusive growth”. At page 19 the Commission sets out some proposals for tackling bottlenecks in the single market. The reference in the second last indent to “making progress towards an optional European Contract Law” is particularly interesting from the point of view of European private law. Read more...Comments (0) |
| The DCFR in Dundee and RomeEric Clive 17 March 2010 10:51 I spoke on the DCFR at a seminar in Dundee last Wednesday and at an enormous congress in Rome on Saturday. At both there seemed to be interest in, and support for, the DCFR project. The seminar in Dundee was followed by an excellent meal in an Italian restaurant. So there was that in common too. Read more...Comments (0) |
| Congress in RomeEric Clive 21 March 2010 21:51 The Rome congress mentioned in the last entry was unlike any other legal conference I have attended. It had over 200 speakers and 2000 participants. Often there were five “streams” running (including e.g. sessions on “diritto civile” and “diritto comparato e diritto internazionale”) at the same time in different halls. It was organised by the Consiglio Nazionale Forense and held in the magnificent Complesso Monumentale di Santo Spirito in Sassia, on the right bank of the Tiber, which doubles as an ancient monument and an ultra-modern conference facility. Read more...Comments (0) |
| There were three main topics on the agenda of this important conference – the CFR as a “toolbox” for improving EU legislation; the proposed Consumer Rights Directive; and the prospects for an optional instrument. Read more...Comments (1) |
| Your correspondent has belatedly caught up with a failed attempt in the now defunct (judicial) House of Lords to use European private law texts to unseat a rule of English law on the interpretation of contracts. Read more...Comments (1) |
| In a speech at the European Universities Institute in Florence on 10 April 2010 Viviane Reding, the Vice-President for Justice Freedom and Security in the European Commission, gave her support to the idea of a European Law Institute carrying out academic research and judicial training in European law. Read more...Comments (1) |
| For your correspondent it all began at 3.54 a.m. on Thursday 15 April 2010, with the beep of an arriving text on his Blackberry announcing the cancellation of his Easyjet flight to Milan later that day due to volcanic ash in the atmosphere, and advising him to check his email, where indeed there was a message in similar terms timed at 1.21 a.m. Read more...Comments (0) |
| Johnnie MacLeod has drawn my attention to an article in the German press on the proposed recasting of the Late Payment Directive (Dir 2000/35/EC). Interestingly the focus of the article is on the legal effects – indeed on legal theory - rather than on the commercial effects of the proposal. The article is based on evidence given by Carsten Schäfer of the University of Mannheim to a recent hearing of the Justice Committee of the German Parliament. Read more...Comments (0) |
| Yesterday I attended a meeting of an advisory group on interpretation set up by the Scottish Law Commission to assist it in its review of Scottish contract law in the light of the DCFR. The group included many experienced Scottish commercial lawyers, both advocates and solicitors. Read more...Comments (1) |
| On Friday I attended the first meeting of the European Commission’s expert group on a Common Frame of Reference on contract law. The official press release issued after the meeting gives the membership of the group, which “brings together legal academics, people practising contract law on a daily basis like lawyers and notaries, as well as consumer and business representatives”. It could be mentioned that it includes a legal academic (Professor Torgny Håstad) who is also a supreme court judge. Read more...Comments (0) |
| Nils Jansen’s new bookEric Clive 26 May 2010 21:59 Nils Jansen is a serious and thoughtful contributor to the great debates on the harmonisation of European private law. I had a good conversation with him in a bus at a conference in Paris. Although he and I seemed to be on opposite sides at the conference, we had some ideas in common about desirable features in a work like the DCFR. So I looked forward to reading his new book. It did not disappoint. Read more...Comments (0) |
| For me the most enjoyable chapter in Micklitz and Cafaggi’s excellent new book on “European Private Law after the Common Frame of Reference” (published by Edward Elgar) was Martijn Hesselink’s discussion of the ideas of Friedrich Hayek. What has Hayek got to do with European private law? Read more...Comments (0) |
| Edinburgh, Tilburg, HelsinkiEric Clive 12 June 2010 17:45 When I first came across ETHYRN in the headings to emails from the Law School I assumed it was the name of a colleague who was having a leaving party. I soon learned that it was the Edinburgh – Tilburg - Helsinki Young Researchers’ Network and that it was having a beginning party in the form of a conference on “Europeanisation”. Read more...Comments (0) |
| The idea of the conference held at Kortrijk on 10th and 11th June was to do a comparison of Belgian law and the rules in most of the DCFR. The format was that, after two general papers, a speaker introduced a section of the DCFR and then a Belgian speaker assessed what difference it would make to Belgian law if these rules were adopted. Read more...Comments (0) |
| When a small group is set up to do an important task there will inevitably be suspicion. How were these people chosen? What are they up to? Are they going to try to undo advances made with great effort by other more representative groups or networks? Read more...Comments (0) |
| The Germans strike againEric Clive 29 June 2010 12:33 Not a reference to the world cup but to an email received this morning from Reinhard Zimmermann giving me advance notice of an article accepted for publication in the Frankfurter Allgemeine Zeitung. The article is signed by Reinhard and nine other German law professors. It is about the future of European private law and more specifically about the task and composition of the group of experts on the CFR. Read more...Comments (0) |
| The short article by ten German professors mentioned in an earlier post has now appeared in today’s Frankfurter Allgemeine Zeitung. Read more...Comments (1) |
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For a while it looked as if initiatives for the formation of a European Law Institute might get bogged down in useless rivalry and competition. The Hamburg meeting convened by Reinhard Zimmermann on 22 and 23 June to try to find a common way forward is therefore greatly to be welcomed. The following account of the meeting and “Hamburg Memorandum” have now been made publicly available on the website of the European Law Institute. Read more...Comments (0) |
| The UK Ministry of Justice, together with the Scottish Government and the Northern Ireland Assembly, published on 18 August 2010 a "Call for Evidence" about the European Commission's Green Paper on a European Contract Law (which was noted on this blog here on 1 July 2010). Read more...Comments (0) |
| There is a short article by Lord Mance, in English, in the latest issue of the Zeitschrift für Europäisches Privatrecht (3/201 at 457-462). He has high praise for the Draft Common Frame of Reference, which was “among the first purchases made by the new library of the new United Kingdom Supreme Court”. He hopes it will be consulted whenever any novel or difficult question arises before the Supreme Court in the fields of private law covered by the DCFR. Read more...Comments (0) |
| One of the themes of the setting-up of the expert group was transparency. Transparency should not mean invisibility. So here is a brief report on what has been happening and on how to find out more. Read more...Comments (0) |
| Milan conference on DCFREric Clive 12 October 2010 20:03 An interesting format was adopted at a conference in Milan on 8 October. Speakers took seven important cases decided by the Italian courts and asked how they would be dealt with under the DCFR. Each case was presented by an eminent Italian professor, who analysed the position under Italian law. The position under the DCFR was then explained by a professor who had been involved in its preparation. Read more...Comments (0) |
| More on the Milan conferenceEric Clive 13 October 2010 15:17 The cases considered at the Milan conference (see preceding entry) covered a wide range. In most cases it turned out that the same results could be reached under the DCFR and under Italian law, but sometimes by slightly different routes. Read more...Comments (0) |
| The occasion was the 12th W A Wilson Memorial Lecture at the Old College on 7 December. The heavy boots were worn by many of those who had trudged through the exceptional snow to get there. The revelation – by Professor Lionel Smith of McGill University – was that the notion of a fund (such as a trust fund) as a “separate patrimony” is by no means alien to the common law. Read more...Comments (0) |
| On 16 December there was a symposium, organised by the Scottish Government and the Law Society of Scotland, on the topic “Good for Scottish law, Good for Scottish Commerce? Options for Reforming Contract Law across the EU”. The aims were to contribute to the Government’s thinking on the options presented by the EU Commission and to assist stakeholders in determining whether and how they might wish to respond to the EU Commission. There was a rich debate, well chaired by Lindy Patterson QC, and these aims were surely achieved. Read more...Comments (0) |
| The DCFR and Trust Law (I)Eric Clive 09 February 2011 12:06 What might be the shape of a trust law for a modern European country? Read more...Comments (0) |
| The DCFR and Trust Law (II)Eric Clive 10 February 2011 11:36 There are plans to introduce fully fledged trusts into Italian law and Dutch law. The ways of doing so, the problems which might be encountered, and the potential value of the DCFR in doing so were addressed in the second half of the Edinburgh symposium on 7 February. Read more...Comments (0) |
| Reinhard Zimmermann, Jürgen Basedow and colleagues have come out in favour of an optional instrument (OI) on European contract law as the option “which appears to be preferable at present”. They do not, however, recommend the adoption of any specific option. It is too early for that as the content of an OI is not known. They keep their powder dry and reiterate concerns about quality and process which some of their number have expressed in the past. Read more...Comments (0) |
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| It all started quietly enough with an email from Niall Whitty, the editor of the Stair Memorial Encyclopaedia, asking some colleagues and collaborators whether anybody would object to the use of “benevolent intervention” as a term of art in the next Reissue instead of or along with negotiorum gestio. Read more...Comments (0) |
| In Scotland abandoned objects belong to the Crown. So, as the Scottish Law Commission has observed, “Each day Her Majesty becomes the owner of countless cigarette ends, crisp packets, drinks cans, chewing gum blobs, and numerous sagging sofas, worn-out washing machines and defunct cars”. At a symposium on Monday, Kenneth Reid suggested that this rule on abandoned property should be changed and that it should be possible for the finder to become the owner. Read more...Comments (1) |
| Christian von Bar is just back from a trip to South Korea. There was great interest in the DCFR. Before he went he was sent a questionnaire by a number of law professors with detailed questions about the DCFR for him to answer in preparation for discussions. I have seen that questionnaire. It is in German and Korean, with quotes from the DCFR in English. It gets down to specifics. Why was this solution chosen rather than that? Why were these words used? Read more...Comments (0) |
| These are the splendidly mixed colours and metaphors in the title to an article in the Archiv für die civilistiche Praxis (Feb 2011 at pp. 1-34) by Walter Doralt. The blue button is the term sometimes used to describe an optional instrument on European contract law, the idea being that a business would put on its website a blue button which the customer would click if prepared to contract on the terms of the instrument. Read more...Comments (0) |
| Promises and contract lawEric Clive 09 April 2011 15:45 Recent developments in European contract law were prominent in the discussion at the seminar on Promises and Contract Law which was held in Edinburgh on 21st March. Read more...Comments (0) |
| The text of the articles agreed by the Expert Group on European contract law will soon appear on the European Commission’s website. Its publication will help to focus the debate on the best way forward in European contract law. It should help to show what one option – an optional law on sales transactions and related services – might look like in practice. Read more...Comments (0) |
| The metaphor of the toolbox is widely used in the current debate on European private law. It has been criticised in the committee rooms of the House of Lords. It has been mocked in the great hall of the Sorbonne. It is still used. It has its delights and its dangers. It may be time to abandon it. Read more...Comments (0) |
| Your correspondent learned at a conference in Berlin 22-24 September 2011 that the European Commission has indicated that it will publish a Proposal for a Regulation on a European Sales Law (?) on 12 October 2011.* This will be based on the drafts already published in May and August this year, and begin a process that may lead, finally, to an "optional instrument" or a "common frame of reference" for a European contract law. Read more...Comments (0) |
| The mood at this conference was more positive and constructive than at some earlier Presidency conferences on this subject. This was probably due partly to the fact that there is now a concrete proposal for a Regulation on the table and partly to the background economic situation. Read more...Comments (0) |
| At a conference in London on the EU contract law project a few years ago I found myself standing next to a stranger. I introduced myself - “Eric Clive, Edinburgh University”. He replied “Thismus Bestopt”. I learned his real name later but I will always think of him as Thismus. Read more...Comments (0) |
| The Feasibility Study on which the current Proposal for a Regulation on a Common European Sales Law was largely based was referred to in the recent Scottish case of Lloyds TSB Foundation for Scotland v Lloyds Banking Group plc [2011] CSIH 87; CA115/10. The reference did not, however, prove productive. Read more...Comments (0) |
| Korrasut Khopuangklang, a postgraduate from Thailand, gave an interesting presentation yesterday on promises in Thai law, Scottish law and the Draft Common Frame of Reference (DCFR). Read more...Comments (2) |
| Conference at TrierEric Clive 16 February 2012 11:41 The ERA conference at Trier last week on “An Optional European Sales Law” was, in retrospect, more consolidation than revelation. There were papers on the political debate, on the legal basis and scope of the proposed Regulation, on the conflict of law issues and on the text of the proposed Common European Sales Law (CESL) itself. On the broad question of policy there was support from most speakers but obstinate opposition from BEUC, the European consumers’ umbrella organisation. Read more...Comments (0) |
| On 16 and 17 February a workshop took place at Tsinghua University School of Law, Beijing. This was the first meeting of the collaborators in a project which aims to investigate contract law in China and Europe in a comparative and cross-cultural perspective. The outcome of the project, funded by The China European School of Law, will be an edited book to be published in 2013. Read more... |
| The European Parliament held a public hearing on the proposal for a Common European Sales Law on 1st March. In his opening remarks Klaus-Heiner Lehne, Chair of the Committee on Legal Affairs and rapporteur for the Common European Sales law, said that this was a particularly important project – for the internal market and for the citizens – and that the Parliament planned to hold a series of hearings and workshops. The objective was an instrument which could be adopted and accepted. Read more...Comments (0) |
| In its recent Discussion Paper on Formation of Contract (Scot Law Com DP 154, March 2012) the Scottish Law Commission makes extensive use of the Draft Common Frame of Reference: Principles, Definitions and Model Rules of European Private Law (DCFR) and the proposed Regulation on a Common European Sales Law (CESL) in reviewing the current law of Scotland and asking about possible reforms. It addresses a problem posed by the existence of these two recent instruments. Which should be used? Read more...Comments (0) |
| The proposed EU Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession was approved by the European Parliament on 13 March. Final Council approval is expected before the end of the Danish Presidency. Read more...Comments (0) |
| I have lectured many times in lecture theatre 175 in the Old Quad over the past 50 years but never to such a cosmopolitan audience. The reason for this was that the symposium was being run in conjunction with a meeting of the Common Core project on interpretation on the following day (27 April) and national reporters were assembled for that. Read more...Comments (0) |
| This conference, held at the University of Roma Tre from 9-11 May 2012 under the guidance of Professor Luigi Moccia, covered a wide range of issues. There was plenty of discussion of the proposed Common European Sales Law (CESL) but that was by no means the only question discussed. Read more... |
| To hand, thanks to the generosity of Antoni Vaquer Aloy, two massive tomos (amounting to 1880 pages all told) of commentary on parts of the DCFR from the Spanish perspective, entitled Derecho Europeo de Contratos: Libros II y IV del Marco Comun de Referencia and published by Atelier in Barcelona. Read more...Comments (0) |
| Christian von Bar reports that good progress is being made on the Korean translation of the Draft Common Frame of Reference (DCFR). Read more...Comments (0) |
| The European Law Institute (ELI) has published a most impressive, and constructive, 300 page paper on the proposed Common European Sales Law (CESL). It takes the political aims of the proposal as given and, as is appropriate for such a body, concentrates on technical legal points designed to make the CESL fulfil its intended purposes more effectively. Read more...Comments (0) |
| I was pleased to see that the article on “The Elective and Automatic Theories of Termination at Common Law: Resolving the Conundrum?” by David Cabrelli and Rebecca Zahn in the Industrial Law Journal, Vol. 41, No. 3, September 2012 had been cited with approval by the Supreme Court in the recent case of Geys v Société Générale, London Branch [2012] UKSC 63. This welcome news item sent me off to read the article and the report of the case. They are fascinating. What is of interest for the purposes of this blog is to compare the Supreme Court’s approach with the approach taken in the Draft Common Frame of Reference (DCFR) and the Common European Sales Law (CESL). Read more...Comments (0) |
| The Draft Common Frame of Reference (DCFR) uses the expression “unilateral juridical act” to denote a statement, “whether express or implied from conduct, which is intended to have legal effect as such” (art. II.-1:101(2). This expression, however, caused puzzlement and misconceptions in some quarters. Some commentators purported not to understand it: others read more into it than was intended. So it was abandoned in the proposed Common European Sales Law (CESL). Read more...Comments (0) |
| How should the law deal with this problem? A contract or a unilateral deed contains an expression which seems to have a perfectly clear meaning. Circumstances change radically, in a way which was unforeseen and unforeseeable, and the application of that clear meaning would produce manifestly unjust and incongruous results. This was the problem facing the UK Supreme Court in the case of Lloyds TSB Foundation for Scotland v Lloyds Banking Group plc [2013] UKSC 3. Read more...Comments (0) |
| Two committees of the European Parliament have been looking at the Proposal for a Common European Sales Law (CESL) this week. The proceedings in both represented satisfactory progress. Read more...Comments (0) |
| Some of the amendments suggested in the excellent draft report by Mr Lehne and Mr Berlinguer to the European Parliament’s Legal Affairs Committee were considered in the last post. Here are some brief comments on a number of the other amendments suggested. Read more...Comments (0) |
| “The effect of error on the validity of a contract is one of the most uncertain areas in our private law.” This is how Lord Malcolm began his opinion in the case of Wills v Strategic Procurement (UK) Ltd. [2013] CSOH 26 – and who could disagree? Read more...Comments (0) |
